How Nebraska Abolished the Death Penalty

The lethal injection chamber in Nebraska, which has never been used.Nate Jenkins / AP

Nebraska on Wednesday became the first conservative state in more than four decades to repeal the death penalty. Its legislature, officially non-partisan but dominated by Republicans, voted by the narrowest of possible margins to override a veto by Governor Pete Ricketts, and enact a law scrapping a punishment that the state has struggled to carry out.

The final vote occurred amid a fierce lobbying campaign on both sides, but the outcome was years in the making: In the end, a growing coalition of liberals, religious groups, and libertarian-minded conservatives overcame more traditional tough-on-crime Republicans who saw the death penalty as the appropriate, ultimate punishment for murder. Underlying that ideological debate, however, was a far more pragmatic consideration. Nebraska has been unable to kill any of the murderers sentenced to death by its legal system since 1997.

In 2009, the state became the last in the nation to adopt lethal injections as its mode of execution, after its highest court ruled the electric chair unconstitutional. Yet like several other states, it has had a hard time procuring the cocktail of drugs needed to carry out the death penalty, and its lethal-injection chamber has remained dormant. That failure has given momentum to opponents of capital punishment, including a new group of conservatives that has invoked fiscal and religious arguments to woo right-leaning legislators to their side.

“It’s not just about the procurement of drugs,” said Marc Hyden of Conservatives Concerned About the Death Penalty, an organization that sprouted up in Montana several years ago and has since expanded nationally. “It’s not pro-life because it risks innocent life. It’s not fiscally responsible because it costs millions more dollars than life without parole.” Yet Nebraska’s bumbling and occasionally shady attempts to carry out death sentences—along with incidents in neighboring states like the botched execution of Clayton Lockett in Oklahoma—have given rise to another argument that sells among conservatives: the death penalty is just another example of government run amok.

“At the end of the day, this is just another big government program that’s really dangerous and expensive but doesn’t achieve any of its goals,” Hyden told me, summarizing his pitch to Republicans. “They don’t need to ask themselves, ‘Do some people deserve to die?’ The question they need to ask themselves is, do they trust an error-prone government to fairly, efficiently and properly administer a program that metes out death to its citizens? I think the answer to that is a resounding no.”

For liberal activists who have long opposed the death penalty on the grounds that it is immoral and an ineffective means of deterring violent crime, the conservatives have been a welcome, if unlikely, allies. “This has been a slow, steady move toward repeal,” said Stacy Anderson, executive director of Nebraskans for Alternatives to the Death Penalty. Danielle Conrad, executive director of the state chapter of the ACLU, cited the state’s unicameral, non-partisan legislature—unique in the U.S.—and a recent term-limits law that facilitated the election of more libertarian-leaning senators in recent years. While advocates say the death penalty has rarely if ever factored into election campaigns, it has been kept alive by the state’s longest-serving legislator (and its first African American state senator), Ernie Chambers, who has championed a ban for decades. (The new term limits forced him to sit out a term before his reelection in 2012.) “Each time that the Nebraska legislature takes this up, we get a little bit further down the road, a little bit closer to repealing the death penalty,” Conrad said.

Support for repeal reached its apex last week when, during a third round of voting, 32 out of the 49 senators backed legislation that went to the governor’s desk. Ricketts has aggressively lobbied legislators to sustain his veto, arguing that the death penalty was necessary and announcing that he had struck a deal with a pharmaceutical company to obtain the drugs needed to carry it out. “Repealing the death penalty sends the wrong message to Nebraskans who overwhelming support capital punishment and look to government to strengthen public safety, not weaken it,” the governor said in his veto message. He urged citizens to contact their senators, and he said the decision over whether to override his veto would “test the true meaning of representative government” and whether the 10 men now on death row would ever receive their rightful sentence.

In a two-and-a-half hour debate on Wednesday, some legislators agonized over the decision, including those who said they were under tremendous pressure from constituents to maintain the death penalty despite their own reservations. Senator Tyson Larson said he would vote to sustain Ricketts’s veto only because he had campaigned in favor of capital punishment, but he suggested he had changed his mind. “This might be the last time I give the state the right to take a life,” he said, as his voice broke. A few lawmakers read passages from the Bible, while others voted to kill the death penalty because, they said, the state’s system was simply broken.

Ultimately, supporters of repeal garnered exactly the number of votes they needed—30—to override the veto, and the death penalty fell. The question now is whether Nebraska will be an isolated example of a state that fumbled its ultimate punishment into extinction, or the first in a wave. “I don’t think Nebraska is unique in any way,” Anderson argued. “The same arguments that are resonating here are resonating across the country.”

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Russell Berman is a staff writer at The Atlantic, where he covers politics.